2010 (2) TMI 711 - HC - Central Excise

Clearance made by one 100% EOU to another 100% EOU - whether deemed exports are to be treated as physical exports for the purpose of entitling refund of unutilized Cenvat credit contemplated under the provisions of Rule 5 of the Cenvat Credit Rules, 2004 - Held that - the clearances made by one 100% EOU to another 100% EOU which are deemed exports are to be treated as physical exports for the purpose of entitling refund of unutilized Cenvat credit contemplated under the provisions of Rule 5 of the Cenvat Credit Rule, 2004. - Decided in favor of assessee.

Summary

Issues Involved:
1. Whether the Tribunal erred in treating deemed exports between 100% EOUs as physical exports for refund of unutilized Cenvat credit under Rule 5 of the Cenvat Credit Rules, 2004.
2. Whether the Tribunal erred in granting a refund of Rs. 5,21,009/- contrary to Rule 5 of the Cenvat Credit Rules, 2004.

Issue-Wise Detailed Analysis:

1. Treatment of Deemed Exports as Physical Exports:

The Revenue challenged the Tribunal's decision to treat clearances between 100% EOUs as physical exports, arguing that this interpretation was incorrect under Rule 5 of the Cenvat Credit Rules, 2004. The Tribunal, however, relied on its earlier decisions, particularly in the case of Amitex Silk Mills Pvt. Ltd., which held that there is no distinction between physical and deemed exports for the purpose of refund of unutilized Cenvat credit. The Tribunal also referenced the Board's Circular No. 220/54/96-CX., dated 4-6-1996, which supported the refund in cases of deemed exports to maintain the competitiveness of Indian industry. The Tribunal's stance was further supported by the Apex Court's dismissal of Revenue's appeals in similar cases, such as Ginni International Ltd. and Sanghi Textiles Ltd., reinforcing that deemed exports should be treated as physical exports for refund purposes.

2. Granting of Refund Contrary to Rule 5 of the Cenvat Credit Rules, 2004:

The Tribunal confirmed the Commissioner (Appeals)'s decision to grant a refund of Rs. 5,21,009/-, which the Revenue contested. The Revenue argued that the Tribunal misinterpreted the Board's Circular and previous case laws, asserting that the refund should not be granted for deemed exports. However, the Tribunal found that the clearances made to another 100% EOU qualified as deemed exports and thus were eligible for the refund of unutilized Cenvat credit under Rule 5. The Tribunal's decision was consistent with its judgments in Amitex Silk Mills Pvt. Ltd. and Sanghi Textiles Ltd., which were upheld by the Apex Court, thereby validating the refund.

Conclusion:

The High Court dismissed the Revenue's appeal, affirming that the Tribunal did not commit any substantial error of law. The Tribunal's interpretation that deemed exports between 100% EOUs should be treated as physical exports for the purpose of refunding unutilized Cenvat credit under Rule 5 of the Cenvat Credit Rules, 2004, was upheld. Additionally, the Tribunal's decision to grant the refund of Rs. 5,21,009/- was found to be justified and legally sound. The appeal was dismissed without any order as to costs, reinforcing the established legal position that deemed exports are entitled to the same benefits as physical exports.